delivered the opinion of the court,
A formal offei; was made to prove that Ira Crawford was insane when he executed the .deed to John Scovell, that Scovell knew of the insanity and procured the deed by fraud. This was overruled on the objection that the offer was not full enough, in that, before the plaintiff can avoid the deed he must have offered to restore its consideration; that a plaintiff cannot allege his own insanity against his deed, and that the witness was incompetent because of his instrumentality in perpetrating the fraud. No objection was made that the specific acts were not set out in the offer, and it is too late to object now. That the witness was competent is not *51doubtful. As the case comes it presents these questions : 1. Can a plaintiff, who brings suit himself, prove his insanity to defeat his deed given in evidence by the defendant ? 2. Can he prove that the defendant knew of the insanity when he took the deed ? 3. May he show the deed was procured by fraud ? and 4. Must he restore the consideration before bringing suit ?
1. It is a general rule that a grantor in a deed may avoid his conveyance by proof that he was non compos mentis at the time of its execution : Bensell v. Chancellor, 5 Whart. 371; 2 Kent’s Com. 451; Gibson v. Soper, 6 Gray 279. Like the deed of an infant, a lunatic’s deed may be ratified and confirmed. Where there is no evidence of ratification after restoration to reason, it is impossible, upon legal principles, that the estate passed to the grantee in the deed. An insane person is incapable of making a valid deed, for he wants the consenting mind. “ The law makes this very incapacity of parties their shield. In their weakness they find protection. It will not suffer those of mature age and sound mind to profit by that weakness. It binds the strong while it protects the weak. It holds the adult to the bargain, which the infant may avoid; the sane to the obligation from which the insane may be loosed. It does not mean to put them on an equality. On the other hand, if intends that he who deals with infant or insane persons shall do it at his peril. Nor is there practically any hardship in this, for men of sound minds seldom unwittingly enter into contracts with infants or insane persons Gibson v. Soper, supra.
In Molton v. Camroux, 2 Exch. 487, an action to recover money paid for annuities, it was held' that when a person apparently of sound mind, and not known to be otherwise, enters into a contract for the purchase of property which is fair and bona fide, and which is executed and completed, and said property has been paid for and enjoyed, and cannot be restored so as to put the parties in statu quo, such contract cannot afterwards be set aside, either by the alleged lunatic or those who represent him. Like doctrine prevailed in Beals v. See, 10 Barr 66. The decision in Lancaster County Nat. Bank v. Moore, 28 P. F. Smith 407, rests on the same principle — there was neither fraud nor knowledge of the insanity. Without inconsistency, in Moore v. Hershey, 9 Norris 196, it was ruled that it is competent in an action by an endorsee of a note made by a lunatic, for the lunatic to defend, either by showing that the endorsee had knowledge of the lunacy, or that the note was originally obtained fraudulently, or without proper consideration. Paxson, J., said, “ I know of no case in which it has been held that a lunatic, when sued upon his contract, may not show want of consideration.” After speaking of the rule which had been urged in favor of the plaintiff, he adds, “We place our ruling upon the broad ground that the principle of commercial law above referred *52to does not apply to the case of commercial paper made by madmen.”
In Elliott v. Ince, 7 De G., M. & G. 475 (487) it is said that Molton v. Camroux was called a decision of necessity, and it is suggested that the same principle might apply to sales of land or mortgages. But in this country that rule is not universally extended to sales of personalty and is not applied to conveyances of real estate. However, on that principle, or the one in Bensell v. Chancellor, the offered testimony was admissible for the purpose of avoiding the deed.
The defendant urged that the plaintiff did not propose to show he had recovered his reason, and, upon the truth of his offer, the law presumes he continues insane; wherefore he cannot maintain the action and allege his insanity. Under the general issue in assumpsit, the defendant may show, in avoidance of the contract, that he was insane at the making of it. If he continues a lunatic he may not appear and plead by attorney, and if it so appears on examination the jolea by attorney may, before judgment, be treated as a nullity, and a guardian be appointed who will be entitled to plead de novo: Mitchell v. Kingman, 5 Pick. 431. So, when a plaintiff is met by a deed, good on its face, he may avoid it by proof that he was insane when it was executed. If his reason has been restored he has no other means of protection. A committee cannot be appointed for a sane man because he was at one time insane. He must bring suit himself to recover his rights, and may prove insanity to avoid a deed set up against him, on the same terms as if he were defendant in the action, and the plaintiff were supporting his case with the same deed. The principle contended for by the defendant would deprive a man, who had been non compos mentis, of remedy for recovery of his property, without fault on his part, and might work his utter ruin. If, at the trial, he should appear to be insane, the court would treat him and his cause as it would any other plaintiff suffering under like malady.
2. From the foregoing it is manifest that it is competent to prove the defendant had knowledge of the insanity when he took the deed. If unnecessary for its avoidance, it may be material on the question of restoration-of the consideration. He who knowingly deals with a madman takes the risk of losing.
3. For like reason it may he proved that the deed was procured by fraud. Even the holder of negotiable paper may fail to recover because the maker was insane, when, but for that, there would be no defence to his action on the ground of fraud or want of proper consideration. Proof that the bargain was unfair and unconscionable would be pertinent in determining the equitable claim of the defendant.
4. The consideration need not be restored before commencement of the action, nor after, in all cases: To say that an insane man *53before he can avoid a voidable deed, must put the grantee in statu quo, would oftentimes be to say his deed shall not be avoided at all. The more insane the grantor was when the deed was made, the less likely will he be to retain the fruits of his bargain so as to be able to make restitution. One of the obvious grounds on which the deed of an insane man is held voidable is not merely the incapacity to make a valid sale, but the incapacity prudently to manage and dispose of the proceeds of the sale. And the same incapacity which made the deed void may have wasted the price, and made the restoration of the consideration impossible: Gibson v. Soper, supra. In that case the defendant contended there could be no recovery because restitution had not been offered, and thereupon the plaintiff proposed, if anything was due, to make such restitution and repayment in such way and manner as the court should direct. The question was, as it is here, whether restoration is a condition precedent to recovery, and not whether under any circumstances a grantee, after avoidance of the deed, may recover back a part or the whole of the price paid. It was said that if the grantor, having been restored to sound mind, still retains and uses the consideration of the deed without offer to restore, or seeks to enforce the securities, or avail himself of the contract which constituted such consideration, such conduct may furnish satisfactory, and, it may be, conclusive evidence of a ratification. That would be an entirely different case from one where the grantor wasted the price he received before his reason was restored. Although the deed has not been ratified, and consequently the plaintiff is entitled to recover the land, should it appear that, in equity, the whole or a part of the consideration ought to be restored or repaid, under the practice in this state, there would be no difficulty in doing justice between the parties by a conditional verdict and judgment.
Judgment reversed, and venire facias de novo awarded.